Responding to Grievances – Tips, Tactics and an Overview of the

Attorney Grievance Process

• Who are the Players?

• What is the Process?

• Sanctions – what is at stake?

• How to Respond to a Grievance?

• How to (Hopefully) Avoid a Grievance

Structure of the Disciplinary SystemTEXAS SUPREME COURT

Board of Disciplinary

Appeals

State Bar of

Texas

District Grievance

Committees

District Court

Chief Disciplinary

Counsel

Commission for Lawyer

Discipline

OR

Court of Appeals

Supreme Court of Texas • Power to regulate the practice of law• Delegated power to the State Bar of Texas

• Texas Disciplinary Rules of Professional Conduct (the “DRs”)

• Texas Rules of Disciplinary Procedure

Commission For Lawyer Discipline (“CFLD”)

• Permanent committee of the State Bar• 12 members

• 6 attorneys & 6 public members• Appointed by the State Bar President and

the Supreme Court of Texas• CFLD is the Petitioner and CDC’s client

Chief Disciplinary Counsel (“CDC”)

• Administers the Disciplinary System• Represents CFLD• Accountable directly to CFLD• Essentially – the “Prosecutor” for

Grievances

Grievance Committees• Members nominated by District Directors &

appointed by State Bar President• 2/3 attorneys; 1/3 public

• Conduct:• “Summary Disposition Panel” Dockets• Administrative Evidentiary Hearings

Board of Disciplinary Appeals (“BODA”)• Statewide adjudicatory body composed of 12

attorneys appointed by Supreme Court• Trial Court

• Compulsory• Reciprocal• Disability• Revocation of probation (also District Court)

• Appellate Court• Classification decisions• Evidentiary judgments

District Courts• Disciplinary cases if Respondent

affirmatively elects• Reinstatements (disbarments, resignations,

disability suspensions)• Interim Suspensions• Assumptions of practice• Revocations of probation of district court

judgments

Appeal to Supreme Court

Written Grievance filed with CDC

ClassificationInquiry Complaint

C appeal to BODA

Affirm Reverse

C may amend and re-fileafter initial dismissal or after

BODA affirms

Complaint sent to R

Just CauseDetermination

No Just CauseJust Cause

SummaryDisp Panel

Notice of AllegationsElection letter

Proceed DismissNo appealEvidentiary

PanelDistrict Court

Appeal to BODA Appeal to Ct. of Appeals

Avoiding a “Just Cause” Determination

• Classification• 12(b)(6) Review• Bar does not handle malpractice claims

• Complaint/Written Response• Best opportunity to avoid sanction• No hearing• No “Just Cause” to proceed• Summary Disposition Panel

Written Response Tips

• Treat it like a Summary Judgment Motion (factssupported by exhibits, reference to rules/law,arguments linked to Rules

• Attach all of the evidence you want to CDC toconsider

• No hearing—so put the argument in the Respose

• Resist the temptation to attack the grievant

Like Civil Trials

THE HEARING

Preponderance of the Evidence

Burden of Proof

SANCTIONS

Sanctions• Private Reprimand (only by Evidentiary Panel)• Public Reprimand• Suspension

• Active, Probated, Partially-Probated• Disbarment• Ancillary Sanctions

• Restitution• Attorney’s Fees & Expenses

Appeal

• Either party may appeal the evidentiary decision to the Board of Disciplinary Appeals

• Appeals from District Court are to the Court of Appeals

How to Handle a Grievance

• DON’T STICK YOUR HEAD IN THE SAND• Be sure to respond

• To the complaint• To Bar Counsel’s requests for information

• Hire someone to represent you?• Be honest with yourself

• Apologize to the client & • Make an offer to settle

Recommendations to avoid a grievance• Use a trust account • Communicate with your client

• Periodic letters to those incarcerated• Phone log

• Keep an accurate calendar• Withdrawal

• Return file (it belongs to the client)• Return any unearned fees

• Document• Time• Communications

•Know which clients NOT to represent

•Know when to withdraw•Don’t invite a grievance

Most of All:

Resources• State Bar of Texas Website: www.texasbar.com• Ethics Help Line 512/427-1340• MCLE

• What to Expect in an Evidentiary Hearing• BODA website

• www.txboda.org

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